NO. 07-04-0384-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A FEBRUARY

23, 2006

______________________________ JERRY AYERS, APPELLANT

V. JEFF LEE ERI CKSON AND CLAYTON HOL COMB CANTER , APPELLEES

_________________________________ FROM THE 2 ND DISTRIC T COURT O F CHEROKEE COUNTY; NO. 2000-04-314; HONORABLE J OE CLAYTON, JUDGE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION Appellant

Jerry Ayers brings this appeal from a summary judgment finding his suit againstappellees Jeff Erickson and Clayton Cante r barred by limitations. W e will affirm.
The facts relevant to this appeal are undisputed. In Augu st 1997 a coll ection of firearms owned by

Ayers w as taken from his home in a burgl ary. Ayers pr omptly repor

ted the theft to police but had no info rmatio n on who ha d taken them. A fter le arning a person named John Byron Cook had posses sed some of the guns after the thef t, Ayers filed suit againstCook in Apr il 2000. During his depo sition in N ovember 2000, C ook implicated1 Cook is not a party to this appeal and hi s answer does not appear i n the record. 2 appellees Erickson an d Canter in t he theft. In 2001, Ayers amended his pe t ition to add Erickson and Canter as defendants.
Erickson and Canter filed answers asserting the af firmative defense of limitations. 1 Theycontended Ayer

s’ claims w

ere barred by

the two-y

ear period of li mitations setout in Section 16.003 of the Civil Practice and Reme dies Code. Eri ckson and C anter filed a motion for summary judgment on thei r limitati ons defense. After deny ing the defendants’ first motion for summary j udgment, the trial court granted a supplemental moti on reurgin g the same ground. The order als o severed t he claims against Cook, making the summa ry judgment final and appealable. Ayers per

fected appeal and now presents three issues

for our review . His is sues ask u s to determine whether the trial court erred in granting judgment f or Erickso n an d Canter on the bas is of limitati ons. Adefendant moving for summary j udgment on the basis of an aff irmative defense such as limitati ons has the burden to prove conclusivelyall th e ele men ts ofthe a ff irma tive defense. KPMG Peat Mar wick v. Har

risonCounty Hous. Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). If the movant es tablishes th at the statute of li mitations bars the action, the nonmovant

must then produce sum maryjudgment proof raising a fact issue on limitations. Id. In reviewing a summary judgment, we take as true all evidence f avorable tothe nonmovant

and make all r

easonable inferences

in the nonmovant's favor. Id. Because3

the pro pri ety

of a summa ry judgm ent is a question of law, we review the trial court's decision de nov

o. Natividad v. Alexsis, Inc. , 875 S.W .2d 695, 699 (Tex. 1994 ). Ayers does not quest ion that secti on 16.003 of the Civ il Practi ce and Remedies Code, which requires a plaintiff to comm ence suit within two years after the cause of act ion accrues, appl ies to claim s fo r con versio n and civil co nspi racy. His respons e to the limitationsdefense is that the disco very rule and the doctrine of equitable estopp el apply to toll limitations until he learned the i dentity of the defendants. In most cases, a cause of ac tion accru es whe n a wron gful act ca uses an in jury, e ven ifthe f act o f inj ury i s no t discover ed until later

and even if all resulting damages haveyet to oc cur. Childs v. Haussecker

, 974 S.W.2d 31, 36 (Tex. 1998) ; S.V. v. R.V. , 933 S.W.2d 1, 4 (Tex. 1996). In cases whe n the n ature of the injury incurred i s inherently

undiscover

able and the evidence of injury is objectively verifiable, courts have applied the disco very ru le as an “exceptio n to the general rule of accrual.” Childs , 974 S.W.2d at 36-37; accord, S.V. , 933 S.W.2d at 4; Computer Assocs. Int'l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex. 1996).
There is no quest ion that Ayer s was aw are of the theft and resulting injury in August 1997. He offers public

policy arguments w hy accrual of his claims should be toll ed until he has a reasonable opportunity to discover the identit

y of t he to rtfe asor s. Te xas co urts have addressed the question whether a pl aintiff’s inabil ity to l earn the identi ty of a pot ential defendanttolls li mitations. Those courts have consi stently hel d it does not. In Childs , the Texas Supreme Court h eld th a t even under the discovery rule once a person “discovers or in the exercise of reasonable diligence should ha ve discovered the injuryand that it w as4

likely caused by t he wrong ful acts of another,”a cause of action a ccrues, “ev en i f the plaintiff does not know

the exactidentity of the wrong doer.” 974 S.W.2d at 40. See also Russell v. Ingersoll-Rand Co. , 841 S.W.2d 343, 344 n.3 (Tex. 1992) . That rule w as applied to a claim for conversion in Steinhagen v. Ehl, 126 S.W.3d 623, 626 (Tex.App.–B eaumont 2004, pet. denied ).
Some auth ority e xists s upp ortin g Aye rs’ a rgument he could not have brought suit before identifying the proper defendants

. See Riston v. D oe , 161 S.W.3d 525 (Tex.App.– Houston [14th Dist.] 2004, pet. denied) (holding suit against John Doe defendants did not toll limitations). Ayers contends this result denies him eq ual protectio n and due process of la w. We may not consider thiscontention for tw o reasons. Fi rst, it w

as not presented to the trial court . We may not consider as g rounds for reversal of a summary judgment issues not expres sly pres ented to the tri al court by writte n motion, answer or oth e r response. T EX . R. C IV . P. 166a(c); Casso v. Br and , 7 7 6 S

. W. 2 d 551, 553 (Tex. 1989). Addi tion ally, Ayers pr

esents no citat ion to author ity or argument applying the wellestablished standa rds for a nalyzi ng claimed deprivations of equal protect ion and due process. Tex. R. App. P. 38.1(h); Moser v. Davis , 79 S.W.3d 162, 170 (Tex.App.–Am arillo 2002, no pet.). Ayers next arg ues the accrual of his claims was toll ed by the defendants’ fraudulent concealment. When applicable, the equitable doctrine of fraudul ent concealment estops a defendant from rely ing on limi tations as a defense. Cadle Co. v. Wilson , 136 S.W.3d 345, 354 (Tex.App.–Austin 200 4, no pet.). The doctrine is limited to those situations in2 See, e.g., Borderlon v. Peck , 661 S.W .2d 907, 908 (Tex. 1983 ). 5 which the defendant has a duty of disclosure, such as a phy sician to a pa tient 2 or attorney to client, or

a fiduciary

relations hip ex ists. Id. Neither Erickson or C anter had a duty of disclosure t o Aye r s a n d t h e d o c t r i n e o f fr a u d u l e n tc o n c e a l m e n ti s i n a p p l i c a b l e . We overrule Ayers’ first two issues. By his third issue, Ayers contends that hi s amended pleading s asserted a c laim for fraud governed by the four-y ear limitati ons per iod of section 16.00 4 of the Civil Practice and Remedies Code. W e are similarly unable to find in the summar y judgment record that such a contention was presented to the trial court. Neither Ayers’ pleadings nor his response to the motions for summary judgment adv ised the tri al court that he contended section 16.004 applied to any of his cl aims. All of the discussion in the summary judgment record concern s th e two-year statute under section 16.003. His thir d point presents nothing for our

review , Casso , 776 S.W.2d at 553, and is overruled. Having overrul ed each of Ayers ’ issues, w e affirm the judgment of the trial cour t.

James T. Campbell Justice